Two-year extension of protective order approved

Where the circuit court extended a two-year protective order for an additional two years, it used the correct standard to extend the order.

“The plain language of Code § 19.2-152.10(B) indicates that so long as the court finds, by a preponderance of the evidence, that an extension of the protective order would ‘protect the health and safety of the petitioner,’ then the circuit court may extend the order.”

Further, “the plain language of the statute imposes no requirement that the petitioner for an extended protective order prove that they were subjected to an act of violence, force, or threat within a reasonable period of time.”

Background

Zimmerman hired Happe as the lead carpenter for her company but demoted him “from a full-time employee to a subcontractor due to his ‘lack of professionalism and incompetence.’ Following this demotion, Mr. Happe ‘began to display unprofessional and obsessive behavior.’”

He “professed his love for Ms. Zimmerman, described medication he was currently using and its effects on him, and offered to purchase a van for Ms. Zimmerman. Mr. Happe also made various references to Ms. Zimmerman’s children and missing them. …

“Mr. Happe also appeared unannounced at Ms. Zimmerman’s home when he knew her husband was out of town. Following this visit, Ms. Zimmerman informed Mr. Happe that she no longer wanted any communication with him. …

“Mr. Happe continued to send emails to Ms. Zimmerman. The circuit court determined in its review of the messages they ‘did not evince overt violent proclivity’ but that the messages were clearly ‘inappropriate and unwarranted.’

“In December 2019, Mr. Happe approached Ms. Zimmerman in a grocery store and began publicly apologizing and following her as she exited the store without acknowledging him.”

The general district court issued Zimmerman a two-year protective order. “She also changed her phone number and email address to prevent Mr. Happe from contacting her. During the two years covered by the protective order, Mr. Happe did not have any verbal contact with Ms. Zimmerman.

“However, Ms. Zimmerman testified that she occasionally had non-verbal interaction with Mr. Happe during the two years. Ms. Zimmerman noted that every time she happened to see Mr. Happe, ‘there is absolute staring. … [I]t’s just an intentional [“]I’m still there at all times,[”] make[s] his presence very, very noticeable.’

“Though the record was not clear on how many times Ms. Zimmerman found Mr. Happe staring at her, she testified that on ‘[s]everal occasions I was at the bank where he’s standing there loading his truck or doing whatever staring at me in my vehicle and my children in it.’

“She also testified that Mr. Happe stared at her ‘loading my children in my car while I’m getting fuel.’ Finally, she testified that she saw Mr. Happe parked on the side of the road staring at her as she drove by.”

Zimmerman petitioned the general district court for a two-year extension. The general district court granted the petition. Happe appealed.

In the circuit court, Happe moved to strike. He argued “that Ms. Zimmerman did not prove that she had been subject to an act of violence, force, or threat within a reasonable period of time and that she did not introduce any new evidence of Mr. Happe’s conduct subsequent to the initial protective order. The circuit court denied the motion.”

Happe renewed his motion, which the court took under advisement. The court’s letter opinion denied the motion and extended the protective order. Happe appealed.

Extension standard

“Prior to 2010, there was no mechanism for a protective order petitioner to extend the order. The only way for a petitioner to continue to benefit from a protective order was to reinitiate the process.

“In 2010, the General Assembly amended Code § 19.2-152.10 to enable a petitioner to request the court enter an extended protective order. … Under that amendment, a court may extend a protective order ‘for a period not longer than two years to protect the health and safety of the petitioner.’ …

“The General Assembly did not articulate what standards the court should apply in determining whether to extend the order, however.

“Furthermore, there is no Virginia case law on what standard courts should apply in determining whether a petitioner for an extended protective order is entitled to that extension.

“The appropriate standard for an extension of a protective order is a question of statutory interpretation which we review de novo. …

“The plain language of Code § 19.2-152.10(B) indicates that so long as the court finds, by a preponderance of the evidence, that an extension of the protective order would ‘protect the health and safety of the petitioner,’ then the circuit court may extend the order.”

No additional requirements

“Mr. Happe argues, however, that Code § 19.2-152.10(B) required Ms. Zimmerman to prove that she had been subjected to an act of violence, force, or threat within a reasonable period of time prior to seeking the extension. …

“[T]he plain language of the statute imposes no requirement that the petitioner for an extended protective order prove that they were subjected to an act of violence, force, or threat within a reasonable period of time. …

“Under Mr. Happe’s proposed standard, a petitioner for an extension of a protective order would be required to prove the exact same elements necessary to obtain an initial protective order. If that were the case, there would be no need for an extension provision as a petitioner could simply refile for a protective order. …

“[W]e also reject Mr. Happe’s argument that the circuit court erred by relying on the conduct underlying the initial protective order. The statute imposes no requirements on the nature of the evidence the petitioner must present in order to carry his or her burden. …

“The nature and severity of the conduct that necessitated the initial protective order is a relevant consideration for the court to consider when determining whether an extension of a protective order will protect the health and safety of the petitioner.”

Affirmed.

Happe v. Zimmerman, Record No. 0588-22-3, May 23, 2023. CAV (published opinion) (Humphreys; Chaney dissenting) From the Circuit Court of Floyd County (Fleenor Jr.) Richard W. Davis, Jr. (Davis, Davis & Davis Attorneys, on briefs), for appellant. No brief or argument for appellee. VLW 023-7-179, 18 pp.